THE LAW OF “ACCIDENT” – S.23 OF THE CRIMINAL CODE, REVIEWED
1. Criminal Code (Qld)
s.23 (1):-
"(1) Subject to the express provisions of this Code relating to
negligent acts and omissions, a person is not criminally responsible
for -
(a) an act or omission that occurs independently of the
exercise of the person's will; or
(b) an event that occurs by accident.
(1A) However, under subsection (1)(b), the person is not excused
from criminal responsibility for death or grievous bodily harm
that results to a victim because of a defect, weakness, or
abnormality even though the offender does not intend or
foresee or can not reasonably foresee the death or grievous
bodily harm."
2. Model directions appear in Chapter 75 of the Queensland Supreme and
District Courts Bench Book - go to www.courts.qld.gov.au and click on
"Practice and Procedure".
3. Availability:
(a) “Subject to the express provisions of this Code relating to negligent
acts and omissions…”
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See s.289 of the Code;
(i) R. -v- Hodgetts and Jackson [1990] 1 Qd. R. 456; (1989) 44 A
Crim R 320;
(ii) Griffiths -v- R (1994) 125 ALR 545;
(b) Where the charge involves an element of specific intent:
(i) See Bench Book, Footnote 9.
(ii) Stevens -v- R (2005) 222 ALR 40.
4. What is the act; what is the event?
(a) R. -v- Taiters [1997] 1 Qd. R 333 - at 335.6:
It should now be taken that in the construction of s.23 the
reference to "act" is to "some physical action apart from its
consequences" and the reference to "event" in the context of
occurring by accident is a reference to "the consequences of
the act.
(b) Stevens -v- R (2005) 222 ALR.
5. What is an "accident":
(a) Kaporonowski -v- R. (1973) 133 CLR 204 at 231:-
"It must now be regarded as settled that an event occurs by
accident within the meaning of the rule if it was a
consequence which was not in fact intended or foreseen by
the accused and would not reasonably have been foreseen
by an ordinary person: see: Vallance v. The Queen,
Mamote-Kulang v. The Queen, Timbu Kolian v. The Queen
and Reg. v. Tralka"
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(b) R. -v- Taiters (supra) at 335.30 (adopts this text).
6. What is it that the Crown must establish was "reasonably foreseeable"?
(a) In a case of grievous bodily harm: R. -v- Stuart [2005] QCA 138 - at
[25]:
"In any event, it was admitted that the injury which occurred,
which involved scarring of the gums and the loss of several
teeth, constituted grievous bodily harm. It was not
necessary that the precise number of teeth damaged or the
precise extent of scarring to the gums should have been
foreseeable. What had to be foreseeable was that the
punch might cause that kind of damage". (emphasis added)
(b) Compare this passage with the statement of Derrington J in R. –v-
W [1999] QCA 202 at [8]:
“In assessing this, the correct issue is whether the relevant
consequential event is a reasonably foreseeable possibility.
It need not be reasonably foreseeable as a certainty nor
even as a probable consequence. This means that it is not
necessary that the exact nature of the resulting harm or the
mechanical processes of its causation should be precisely
understood; only that harm amounting to grievous bodily
harm might possible follows: cf The Queen –v- West
(unreported) Court of Appeal (Qld) CA No. 288 of 1996 – 26
November 1996.”
(c) In a case of unlawful killing: R. -v- Taiters, supra,
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- At 335.15:
"A number of occurrences can as a result of the
operation of one or more chains of causation follow
upon the doing of an act. However, s.23 is
concerned to excuse from criminal liability so the
relevant event for the operation of the section, would
constitute some factual element of an offence which
might be charged. In cases where grievous bodily
harm is charged the state of bodily harm will be the
relevant event and when unlawful killing is charged,
the death will be the relevant event."
7. What is an "ordinary person"? How far into the accused's position must
that person be placed?
(a) R. -v- Taiters (supra) at 338.20:
"The references which have been made in the cases to
"reasonably" and "ordinary person" in the context under
discussion, give an emphasis to the fact that the relevant
test calls for a practical approach and is not concerned with
theoretical remote possibilities. It directed inquiry to what
would be present in the mind of an ordinary person acting in
the circumstances with the usual limited time for assessing
probabilities, this being a factor which is applicable to a
great deal of human activity."
8. Section 23(1A) - (not to be the subject of detailed attention):
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(a) (1A) However, under subsection (1)(b), the person is not excused
from criminal responsibility for death or grievous bodily harm that
results to a victim because of a defect, weakness, or abnormality
even though the offender does not intend or foresee or can not
reasonably foresee the death or grievous bodily harm.
(b) Legislative reversal of the effect which Van den Bemd had on the
“eggshell skull” Rule.
(c) R. -v- Charles 123 A Crim R. 253
"Subsection (1A) is essentially a proviso to s.23(1)(b) and it
is only intelligible when read in conjunction with the relevant
law on s.23(1)(b). referred to in isolation it is clearly
misleading."
(d) See also R. -v- Steindl [2002] 2 Qd R 542.
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